Conklin v. Randolph

281 N.W.2d 913, 204 Neb. 332, 1979 Neb. LEXIS 1133
CourtNebraska Supreme Court
DecidedAugust 14, 1979
DocketNo. 42234
StatusPublished
Cited by3 cases

This text of 281 N.W.2d 913 (Conklin v. Randolph) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conklin v. Randolph, 281 N.W.2d 913, 204 Neb. 332, 1979 Neb. LEXIS 1133 (Neb. 1979).

Opinion

Brodkey, J.

This action originated in the District Court for Scotts Bluff County as an action for an accounting between Fred Conklin and Vernon S. Randolph as partners in an oral partnership known as R & F Land Co., and also as a partition proceeding with reference to certain real estate owned by the partnership. A hearing on a motion for summary judgment for the partition of the real estate was held on January 30, 1976, and on February 9, 1976, the court entered its order finding and decreeing that an un[334]*334divided one-half interest in the real estate in question was owned by Fred Conklin and an undivided one-half interest by Vernon S. Randolph. The court also ordered the appointment of a referee to make the partition and retained jurisdiction for all other matters involved in the action. Thereafter, the referee filed his report finding that in his opinion the property should be sold and the proceeds thereof divided, as it was not practical to physically divide the premises without prejudice to the owners thereof. No sale of the premises, however, was ever held; and the entire case came on for trial on December 1 and December 13, 1977, upon a stipulation of facts between the parties and the testimony of witnesses.

The court entered its decree on May 3, 1978, making certain findings of fact with reference to disputed issues in the accounting action, and also finding that, upon the partition sale of the partnership real estate, certain debts and court costs should be paid and the proceeds divided between the parties, awarding 12.5 percent thereof to Fred Conklin and Helen W. Conklin, and 87.5 percent to Vernon S. Randolph and Carol W. Randolph, and further reciting that the distribution should be a full and complete settlement for all claims, properties, monies, and accounts between the parties arising out of the partnership of R & F Land Co. Plaintiffs, Fred Conklin and Helen W. Conklin, have appealed to this court from that decree, and the defendants, Vernon S. Randolph and Carol W. Randolph, have also cross-appealed therefrom. The first two assignments of error in the briefs of the respective parties are identical, and they are as follows: “(1) The trial court erred in departing from the stipulated and determined equal ownership of the partnership real estate; and (2) the trial court erred in ordering partition proceedings of equally owned partnership real estate to be distributed 12 1/2% and 87 1/2%. ” In [335]*335effect, therefore, both parties agree that the division of the real estate ordered by the trial court is in error and that the matter should be reversed.

By way of background, it appears that the parties have been acquainted with each other for many years. Randolph had operated a Chevron gas station in Scottsbluff and was acquainted with Conklin, who from 1951 to 1973 was engaged as a commission sales agent for Continental Oil Company (hereinafter referred to as Conoco), his territory being the western half of Scotts Bluff and Morrill Counties. In 1966, Conklin approached Randolph and discussed the possibility of forming a partnership to construct a Conoco gas station at a different location in Scottsbluff. It appears Conklin had purchased a prebuilt packaged Conoco gas station which he desired to erect on a lot to be purchased by the proposed partnership. It was agreed the partnership would be formed, although no written agreement was ever entered into between them and their specific understanding of the details at the time was somewhat vague. They did, however, apply for financing to the Scottsbluff National Bank and Trust Company, and consulted with Robert Finke, a vice president, with regard to the details of the loan required. In any event, the building was thereafter erected on a lot purchased by the partnership, as well as a car-wash operation, and the station opened for business during the last week of November 1969. Although the partners anticipated obtaining a 10-year loan from the Scottsbluff National Bank and Trust Company (hereinafter referred to as the Bank), the Bank was unwilling to give a 10-year loan on the carwash equipment, but instead made a 10-year loan on the real estate in the amount of $37,500, payable monthly at the rate of $435.43; and a 5-year loan on the equipment in the amount of $25,000, payable monthly at the rate of $610.40, or a total monthly payment of $1,045.83, instead of the approximately $600 per [336]*336month originally anticipated by the partners. The partnership also obtained a franchise for the sale of certain carwash machinery and equipment, but the franchise was taken in the name of Conklin alone. The record reveals that Randolph operated three independent businesses from the premises in question, which businesses were owned by him and not by the partnership. These were the operation of the service station, the sale of carwash services to the public, and also the sale of campers and travel trailers. By agreement, Randolph’s accountant, Lee Daley, served as accountant for the partnership and prepared the partnership records and tax returns. Carol Randolph, wife of Vernon, acted as bookkeeper for the partnership. There is no question or dispute that Randolph did not pay any rent to the partnership for the use of the premises in conducting his individual businesses, his reason for his failure to pay being a matter of dispute between the parties.

It is clear from the record that after the construction of the station, Conoco leased the station from the partnership for a rental of 1 dollar per month plus 2 cents for every gallon of gas delivered to the station, and there is in the evidence a written lease between the parties to that effect. Conoco then leased the station back to the partnership for the sum of 1 dollar a month, and there is likewise a lease evidencing this transaction in the record. The original lease to Conoco was for a period of 5 years commencing on April 1, 1969, and ending on April 1, 1974, with an option to renew for an additional 5 years, which Conoco exercised on February 28, 1974. The renewed lease expired on April 1, 1979.

Randolph testified that Conklin had promised to pay him 1 cent on every gallon of gas delivered by Conoco to the station, and the trial judge in his order found that Conklin, as part of the partnership agreement, was to pay to Randolph, and not to the partnership, from his own funds, 1 cent per gallon for [337]*337each gallon of gas delivered by Conoco to the service station. Conklin admitted in his testimony that he had promised to contribute to the partnership from his commission 1 cent on every gallon of gas delivered to the station, but also claimed that one-half of his 1-cent commission actually had been included in the 2 cents a gallon which Conoco paid to the partnership under its written lease. There is no evidence in the record, however, that Randolph knew of or agreed to this arrangement. In any event, Conklin paid the other one-half cent of his commission directly to the partnership. It appears from the record that both Randolph and Conklin agreed Randolph was to apply the income from the Conoco rent and from Conklin’s commission payments to pay the monthly loan payments due the Bank, and if there was insufficient income for that purpose Randolph was to make up the difference. The profits from the sale of the carwash operations were to be used to pay the other expenses of the partnership’s business. The District Court, however, found that Randolph was to make the payments on the real estate mortgage to the Bank in the amount of $435.43, and that the payments on the equipment and carwash would come primarily from proceeds from the sale of car-washes by the parties.

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Bluebook (online)
281 N.W.2d 913, 204 Neb. 332, 1979 Neb. LEXIS 1133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conklin-v-randolph-neb-1979.